Friday, October 22, 2010

I'm Not Sure Bacon Counts As A Hate Crime

(via Dispatches) Let me stipulate up front that leaving a message in bacon on the grounds of a mosque is

  • Juvenile
  • Vandalism
  • Almost certainly motivated by animus towards Muslims as a group.

However, I'm extremely leery of categorizing such an act as a "hate crime" since the "baconing" (if you will) of a mosque:

  • Borders on political speech.
  • Lacks essential elements necessary to merit the designation.

I'm not suggesting that the act, as described in the Sun News article, is bona fide political speech, but rather that its close enough to the real thing that we should be wary of setting a chilling precedent. If I were to wrap a Koran in bacon and hang it in an art gallery you'd be hard-pressed to argue that it was anything other than a legitimate excercise of free speech. Similarly, were I to picket a mosque with a sign reading "Pork is yummy" in foot-high, bacon-based letters you might call me an idiot and question the utility of my actions, but it'd be a stretch to categorize such activity as a hate crime.

Now suppose I steal onto the mosque grounds in the middle of the night and leave that same message, in bacon, in the courtyard. I'm trespassing, and committing an act of vandalism, but am I committing a hate crime? There are parallels here with other forms of anti-religious protest such as the desecration of communion wafers. If I leave broken crackers strewn through the nave of my local Catholic church on account of disagreements with Rome should that also be considered a hate crime?

The question of what is, and is not, a "hate crime" brings to mind a quote from David Neiwert on this topic which I've written about before:

Hate crimes are message crimes: They are intended to harm not just the immediate victim, but all people of that same class within the community. Their message is also irrevocable: they are "get out of town, nigger/Jew/queer" crimes.

I've thought about this definition a lot in the 3 years since I wrote that post and have come to the conclusion that David is essentially correct. I have no trouble supporting the idea that feeling secure from private violence is a fundamental civil right; other rights mean nothing if their free excercise is restrained by the threat of bodily harm. However, I also think that this principle should be narrowly construed, which puts me at odds with the general trend in progressive thought. That it is motivated by animus towards a particular group is insufficient to make an act a hate crime; such an act must also deprive the targeted group of the feeling that they are safe from private violence. Put more plainly the act must, implicitly or explicitly, threaten future violence against the targeted group.

This formulation neatly sidesteps the problem of determining the intent of the perpetrator. Intent is impossible to prove directly; to do so we'd need a record of the perpetrator's thoughts at the time the crime was committed. Instead, under current law we look for extrinsic behaviors which may serve as proxies for the perpetrator's mental state1 at the time the crime was committed. Which leads, inevitably, to ridiculous logical contortions of the kind we've seen recently here in Seattle:

King County prosecutors will not file hate crime charges against a Seattle police detective accused caught on camera striking a Latino man while threatening to "beat the Mexican piss" out of him.

....

"Detective Cobane did not maliciously and intentionally target (the man) due to his ethnicity," Satterberg said in statement issued Wednesday afternoon. "Instead, Detective Cobane and his fellow officers lawfully detained (the man) ... because they had a reasonable belief that the men were involved in two armed robberies. ...

"Detective Cobane used patently offensive language referencing the suspect's ethnicity. However, using such language is not in and of itself a crime. The threat or assault must be directed specifically towards a person because of the person's race. Detective Cobane's command to stay still was directed at (the man) due to (his) actions and his lack of compliance, not his ethnicity." 2

It certainly looks like a hate crime, but how do you prove beyond a reasonable doubt that Satterberg's interpretation is incorrect? You can't, for the reasons outlined above.

However, if we take the view that hate crimes are essentially acts of intimidation directed towards a particular group, its no longer necessary to determine Detective Cobane's precise motivation. A reasonable person would conclude, based solely on observation of external phenomena, that Detective Cobane is prone to express his dislike of Mexicans through violence. Mexicans in the area should rightly fear for their safety3 knowing that he's around, thus Detective Cobane's actions represent a hate crime, QED. Moreover, Detective Cobane could reasonably be expected to understand that his actions would be interpreted in this fashion and thus has the notice he needs to restrain his actions.

Which brings us back to the baconing. I maintain that a reasonable person would not believe that it represents a credible threat of future violence to the Muslim community in the area4. They might find it irritating, or offensive, or an abuse of bacon, but none of these things, by themselves, are sufficient to make it a hate crime.


1 Which just pushes the problem off one level if you ask me... how do you prove that a visible behavior is an accurate proxy for someone's mental state?
2 Shorter Prosecutor Satterberg: Detective Cobane was just using the first epithet that came to his mind to express his anger as he beat the snot out of the victim. Nothing to see here... move along.
3 Doubly-so because he's a police officer. Not only might he be a perpetrator of violence against them, but he may very well also be less inclined to protect them from violence perpetrated by third parties.
4 You might inquire as to whether I'm in a position to fairly render such a judgement evaluating in this case; that's a fair enough criticism and you're welcome to disagree with my assessment. Such determinations are rightly the domain of judges and juries rather than individual bloggers.

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